Articles Posted in Child Support

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In a recent controversial New Jersey case, Rachel Canning filed a lawsuit against her parents requesting child support. Canning, a high school senior, alleges her parents kicked her out of their house after she turned 18 years old. Through her attorney, Canning is requesting financial support and an order for her parents to pay her college tuition. Canning’s parents dispute her allegations that she was forced out of their home and argue that Canning left home voluntarily. Apparently a dispute arose between Canning and her parents regarding the rules she should be required to follow while living at home. Essentially Canning is refusing to live at home with her parents who welcome her home but asking for her parents to pay for alternative living arrangements.

Canning is currently living with her best friend’s family. Further, Canning’s best friend’s father is funding her lawsuit against her parents by paying for her attorney fees. The New Jersey judge assigned to the case held that Canning did not have the legal right to request support from her parents and denied her motion. Generally, in California, the custodial parent petition’s the family court to request child support from the other parent. The recent New Jersey case is so controversial because an adult child is suing her parents for financial support in complete contrast to the traditional paradigm.In California child support cases, many parents ask if they have a legal obligation to support their child financially after the child reaches the age of 18. Pursuant to the California Family Code, unless there is an agreement by the parties or an incapacitated adult child meeting various requirements, a parent’s statutory duty to provide child support ends upon the child’s marriage, death, emancipation, at age 19, or at age 18 and is not attending high school full time – whichever occurs first. This means that in some cases, a parent is obligated to support a child after that child reaches the age of majority (18) as long as the child is still a full-time high school student. The reason for this particular provision is that some children start school later than others or are held back a grade. In those cases, the child will graduate high school at age 19 rather than age 18.

It is important to note that there are a variety of cases and statues which specifically deal with the support of an adult child who suffers from an incapacitating disability. These are fact driven cases and should be handled by a Certified Family Law Specialist.
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“Real Housewives of Beverly Hills” star, Brandi Glanville, shared with the world on twitter that her ex, Eddie Cibrian, who is now married to singer LeAnn Rimes, is allegedly asking her to pay child support for their two kids. But could this even be a possibility? Word on the street is that men are the only ones on the hook for child support after a divorce. Well, try again. Being a woman isn’t the “easy card” out of paying child support.California divorce attorneys are actually seeing an increase in the number of women who are required to pay child support to their ex-husband. This growth represents an apparent reversal of traditional divorce roles and may seem shocking to some people. However, in the last few decades there has been a shift in society where we are seeing more women working, landing high-paying jobs and achieving great success in their careers. Consequently, more women are being labeled as the primary breadwinner in their marriages rather than their male counterpart. More fathers, on the other hand, are acting as the primary caretakers of the children. As a result, more women are financially exposed to be on the hook for child support if the marriage results in a divorce. Child support orders are reflecting these changes by showing an increase in women being ordered to pay child support.

So what exactly is child support? Child support is money that a court orders a parent to pay each month, which is intended to help cover the child’s living expenses, including food, clothing, medical care, education, etc. In California, every parent has a duty to financially support his or her child. If the parents cannot agree on a child support amount, the court will make a child support order. In California, the court typically bases its decision on an established guideline calculation. In fact, Family Code Section 4052 provides that the court may only depart from the statewide uniform guideline under special circumstances.California family courts consider two main factors when calculating child support: 1) the percentage of time the child spends with each parent (i.e. the “timeshare”) and 2) each parent’s income. However, there are many other factors that might impact the child support calculation. These include the number of children the parents have together, the tax filing status of each parent, health insurance expenses, mandatory retirement contributions or union dues, support of children from other relationships, and other costs. Consideration of all of these factors is not one-sided, in that they aren’t only considered in favor of the mother. Rather, if the father is the custodial parent and the mother is the breadwinner, it is quite likely that the mother will be required to pay the father child support for the children.
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Sibling relationships are often the longest and most important relationship a child will develop. But what happens to that relationship when siblings are torn apart as a result of two parents that can’t get along and decide to divorce. In many divorces, custody disputes become very heated and in some extenuating circumstances, the result is that siblings are separated. This type of custody arrangement referred to as “split custody” (although not defined by the California Family Code) results in each parent being awarded custody of at least one child of the marriage at all times, meaning that the children will live separate and apart from his/her sibling. Sounds like a real life version of the movie, The Parent Trap, doesn’t it?

Luckily, splitting siblings up between the divorcing parents is extremely rare. As would be expected, Courts generally believe that it is in the children’s best interest to live with their siblings and not be split. Divorces are difficult enough on a child so separating them from their siblings is often considered to be too much of a change and detriment to the children on top of the divorce itself. California public policy provides that the bond between siblings should be preserved whenever possible. Parents should want to do everything they can to maintain that sibling relationship as well.

If fact, courts disfavor separating siblings so much that an order separating siblings between custodial households will typically be reversed because it is deemed detrimental to the children’s best interests. Courts have argued that children should not be treated like another piece of community property to be divided equally for their parents’ benefit. Rather, children have a right to the companionship of their siblings.However, there are times when a “split custody” arrangement might appear to be a good idea for the children. For instance, there are some situations where the siblings are so combative and abusive to one another (perhaps as a result of one of the children having a mental health problem) that it would be toxic to keep them in the same household. Another situation is where there is conflict between a sibling and a parent such that it might make sense to place the children with the parent that he/she is less combative with. Or perhaps, one parent relocates and one of the children has more educational opportunities in the other state
Nonetheless, even where there may appear to be a compelling reason for splitting up the custody of siblings, it is not always the right solution. Rather, it is important to strongly consider the impact of sibling separation on all children involved and to preserve the sibling bond whenever possible.
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When you think of sperm donor, you typically think of someone whose involvement in the child’s life doesn’t extend beyond the act of assisting in the child’s conception. This is usually the case for sperm donors as they typically waive all parental rights during the process. However, sperm donor William Moratto recently got pulled into a child support case and a Judge in Topeka, Kansas actually ended up ordering him to pay child support for the child, now 4 years old, that he helped to bring into this world!

Marotta had responded to a Craigslist ad from a couple requesting a “private” sperm donor. The artificial insemination process did not involve a licensed physician but the couple did present Marotta with a sperm donor contract, which Moratto believed was a valid agreement indicating his intention to cease any parental role following the donation. Little did Marotta know that his donation would later cause him be on the hook for thousands of dollars of child support.Marotta argued that he was only a sperm donor and not a “parent” for purposes of barring his liability for child support. Unfortunately, the Judge found that Marotta’s claim of being just a sperm donor was nullified because the state’s statute specifically requires the donation to be made to a licensed physician if the donor wants to be treated as if he were not the birth father. Thus, the Kansas statutory bar to paternity could not be applied to Marotta as a defense against being subject to the rights and responsibilities of parenthood, including potential liability for child support. Would the same hold true in California? Like Kansas law, California Family Code Section 7613 also offers a statutory basis disqualifying a sperm donor from being subject to a child support obligation for the child he helped conceive. The California statute provides that “[t]he donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of a woman other than the donor’s spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.”

The Court further ruled that Marotta did not properly waive his rights as a parent despite the written agreement that he signed with the couple at the time of the donation. The Court reasoned that a parent cannot terminate parental rights by contract. Rather a termination of parental rights can only occur in one of three ways: 1) adjudication of child in need of care, 2) relinquishment and adoption or 3) a judicial finding that the parent is unfit to act as a parent. For information regarding when a parent in California is able to voluntarily terminate his/her parental rights, please see our webpage titled “Termination of Parental Rights”.
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Jurisdiction is a complicated issue even for experienced attorneys. It is understandable that family law litigants are often unsure regarding where to file their case especially if the parties live in separate states or cities. In addition, jurisdiction may present a problem if one party would like to modify a previous custody and visitation order and neither party lives in the state which originally issued the order. In San Diego, the family court website will direct potential litigants to the particular family courthouse where a case should be filed. San Diego family court jurisdiction is divided by zip code of the filing party. This means that the filing party only needs to enter his or her zip code and the website will direct him or her to the correct courthouse. However, these web tools do not provide guidance for parties with complicated jurisdictional questions.

In general, before a court can exercise jurisdiction over a case (hear the matter) the court must determine it has subject matter jurisdiction and personal jurisdiction over the parties. The subject matter jurisdiction requirement means that the particular court hearing the case must have the legal authority to hear that specific type of case. For example, a bankruptcy court will not entertain a divorce case and a criminal court will not make rulings in a bankruptcy case. In any custody case, family courts will have subject matter jurisdiction over the matter. Therefore, all requests for custody orders or a modification to a current order should be filed with a family court.

If the parents of a child live in separate states, the state where each parent resides will not likely have personal jurisdiction over the other parent. Personal jurisdiction requires one of the following: (1) living in the state with the intent to remain, (2) personal service while physically present in the state, (3) consent, (4) sufficient minimum contacts, (5) or pursuant to a long arm statue. Each of these methods of acquiring personal jurisdiction involves a complicated legal analysis and citation of legal authority not available to most family law litigants. Considering this requirement, it may seem impossible to get custody orders from a state if your co-parent does not live in the same state.

Fortunately, the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) provides clear authority for jurisdiction over custody matters. The UCCJEA states that a child’s “home state” shall have exclusive and continuing jurisdiction for child custody litigation. A child’s “home state” is defined as the state where the child has lived with a parent for at least six consecutive months prior to the commencement of the proceeding. If the child is younger than six months old, the “home state” is the state where the child has lived since birth. Therefore a custody case should be filed in the state where the child resides regardless if one parent lives out of state.
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Being awarded child support is very important for financial stability of the child support recipient and his/her children. Thus, the possibility of not receiving the child support that is owed can be detrimental. One question often in the minds of child support recipients is whether the payor spouse can avoid paying for child support by filing for bankruptcy.

Luckily, the Bankruptcy Code is designed to attempt to protect the rights of the former spouse to collect child support due to him or her. Congress apparently realized that child support debt is too important and thus should not be able to be discharged in bankruptcy proceedings. Typically when a debtor files for bankruptcy an automatic stay comes into effect which halts creditors from collecting on their debts from the debtor. However, this automatic stay does not apply to enforcement of the collection of child support. The spouse who receives the child support doesn’t even have to file any proof of claim or objection to the bankruptcy court in order to enforce his or her right to receive the child support. Rather, an existing order to pay child support debts remains in effect and will continue to accrue during and even after the bankruptcy case is completed. As a result, a former spouse that files bankruptcy cannot avoid paying child support. However, it is important to note that past due child support that was owed as of the date of filing for bankruptcy might not be paid immediately. The automatic stay will often prevent this issue from being addressed until the automatic stay is lifted, especially if there are many credits in line.

Although child support can be extremely burdensome on the payor, filing for bankruptcy is not an effective means of eliminating the financial obligation. A better forum to reduce child support payments is the family law court, if appropriate factors apply of course. However, filing for bankruptcy might help reduce other unsecure debts such that child support obligations may be easier to afford for the payor spouse.

Another important note is that if you are the recipient of child support and you file for bankruptcy, the child support payments you receive are exempt from bankruptcy proceedings, meaning that those payments cannot be used to pay creditors.
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Those born and raised in the United States tend to have the understanding that they are free to say anything they wish behind the protections of the First Amendment. However, courts have put a number of restrictions on free speech such as prohibitions against defamation, obscenity, and harassment. In a recent family law case involving basketball star Steve Nash, family courts placed another restriction on the First Amendment. In the Nash case, the Arizona Court of Appeals placed a muzzle on social media communications in family law proceedings.

In nearly every child custody and/or visitation order the judge (or the parties through agreement) will include the following language:

Neither parent shall make negative statements about the other in the presence or hearing of the children or question the children about the other parent. The parents shall communicate directly with each other in matters concerning the children and shall not use the children as a messenger between them. The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order.

Not surprisingly, this language was included in the Nash joint custody agreement. Following the issuance of this standard admonition, Nash’s ex-wife, Alejandra Amarilla, was alleged to have made disparaging remarks about him through her social media account, Twitter. As a result, Nash petitioned the court to intervene arguing that his former spouse was violating the non-disparaging clause. Amarilla defended her actions citing the First Amendment’s freedom of speech clause in support of her case. The First Amendment has frequently been expanded to include “speech” in the form of electronic communication.

In the Nash case, the court held that Ms. Amarilla’s conduct was not protected by the First Amendment and made an order prohibiting both parties from making disparaging comments about each other on social media sites. The court based its decision on the fact that Steve Nash is a highly public figure and therefore the comments made by his former wife were likely to reach their children. The court also noted that social media comments or postings cannot be adequately controlled or maintained to prevent exposure of improper conduct to the children. Ms. Amarilla appealed the trial court’s ruling and the Arizona Court of Appeals determined that the trial court did not abuse its discretion and upheld the earlier ruling.

Since the Nash case was recently decided, its effect on other family law matters is unknown. However, a good argument exists for the position that the Nash case is inapplicable in ordinary divorce matters because the parties’ social media sites are not as prolific as those of celebrities.
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In family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which stand to deter litigation tactics involving false allegations of abuse by providing the following remedies to the falsely accused.Sanctions: Family Code section 3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party’s attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring their claim for sanctions within a reasonable time of their exoneration.

Supervised Visitation or Limited Custody/Visitation: Family Code section 3027.5 provides that the court may order supervised visitation or limit a parent’s time with the child if the court finds that that parent made knowingly false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent’s lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child’s health, safety, and welfare balanced against the child’s interest to have frequent and continuing contact with both parents.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent’s motion for reconsideration of such an order must be granted under these circumstances.
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As originally reported by TMZ, Jermaine Jackson, well known singer and member of The Jackson 5, may have fallen behind in child support payments but it appears he may have taken care of his arrears after all. TMZ reported that Jackson was falling farther and farther behind on the $3,000 per month child support that he has been ordered to pay to Alejandra Jackson for their 17-year-old son, Jafaar, and 13-year-old son, Jermajesty. He also reportedly had $12,000 in child support arrears that were owed, of which he had allegedly only paid $85. TMZ also reported that L.A. County Child Support Services Department had filed papers asking the court to hold Jackson in contempt, which could have ended up landing him in jail.But is jail really the best answer for parents who have been obligated to pay child support, but who are failing to pay? Perhaps there are some legitimate reasons why jail time should be the very last resort. Courts seem to agree. It is much more common for a court to order a form of interception of the income of the person who owes child support (i.e. wage garnishments, taking tax refunds, etc.), revoke his or her license, or even impose fines before sending the person behind bars. The reason courts are more inclined to do this is because they are focused on getting the money to the children rather than punishing the offender. After all, the Court’s ultimate goal is to promote what is in the best interests of the children by fostering the relationship between the children and the parents and by making sure that the children’s needs are taken care of.

The purpose of jail time for parents who are delinquent on child support (and who are found to be in contempt of court) is to attempt to coerce him or her into paying the child support that has been ordered. However, if the person who is behind on child support payments gets locked up behind bars then he or she has less chance of earning the income necessary to pay the child support. Also, jail time will likely just further alienate him or her from the children.

Thus, time behind bars for failure to pay child support seems like it would just end up causing more detriment than benefit, especially to the children involved. Since the Court’s goal is to protect the children, it makes sense that jail time should be a last resort in these situations. As for Jackson, it appears that he has made amends in some way, though, as the father and his two sons were spotted out together in Los Angeles in November 2013 – just about a month after his potential legal troubles broke news.

If you are considering a divorce from your spouse or have questions regarding the enforcement of child support orders, please contact our experienced attorneys.
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After five years of marriage, famous rapper and producer Timbaland is on the road to divorce according to TMZ. His wife, Monique Mosley, is apparently requesting child support not only for their five-year-old daughter but also for Mosley’s ten-year-old child from a previous relationship. Mosley believes that her request is fair because she alleges that Timbaland publicly and privately proclaimed the child as his own. Although it may seem crazy to make a non-biological father fork over money for a kid that isn’t even his, we sometimes come across clients who want to know if it is actually a possibility. Although the responsibility to support a non-biological child would typically end upon divorce from the child’s mother, a non-bioloigcal father may be ordered to pay child support based on his behavior, rather than his legal status. In other words, the non-biological father may be liable for child support if he holds himself out to the child as the child’s parent and the child believes him to be his father.

For example, in the case Clevenger v. Clevenger (1961), Husband was not the natural father yet he put his name on the child’s birth certificate, accepted the child into his home and held the child out as his own for over a decade. The court identified a policy by which a non-biological father cannot avoid liability for child support following a divorce from the child’s mother if the non-biological father expressly represented himself to be the child’s natural father and the child believed him to be the natural father.Another example can be examined in the case In re Marriage of Valle (1975), where a husband was ordered to pay support for his in-law’s children because he continuously represented that the children were his, the children referred to him as “Daddy” and the children had no contact or memory of their natural parents. The court held that because the non-biological father acted like a parent and his behavior effectively precluded the children from having the opportunity to re-establish a relationship with their natural parents, the court was able to hold him liable for child support.

If you are a non-biological parent and curious whether you may be on the hook for child support, look at whether your day-to-day role is a parent for the child and whether the child has come to see you as being his/her “real” parent. However, note that the latter is sometimes difficult to prove as the non-biological parent would essentially have to interfere with the child’s ability to know that someone else is actually the biological parent.

If you are in a situation like Timbaland and his wife and you are curious about your rights regarding requesting or paying child support, contact us today to schedule a consultation.
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